This week, the International Union for the Protection of New Varieties of Plants (UPOV) is holding its annual Council meeting, along with bi-annual administrative and consultative committees. A seminar also is being held on essentially derived varieties. Meanwhile, civil society is asking that all the meeting documents be held public while demonstrating that restricted documents can be obtained through national freedom of information rights.

Yesterday, UPOV’s Administrative and Legal Committee held its 68th session, the 86th session of the Consultative Committee will meet on 23 October, the 47th session of the UPOV Council will meet on 24 October, and on 25 October, the Administrative and Legal Committee Advisory Group is scheduled to meet. UPOV is hosted by the World Intellectual Property Organization, and the WIPO director general, Francis Gurry, is UPOV’s secretary general.

Restricted Documents in the Open

Civil society has asked that documents of the Consultative Committee, which is the preparatory committee of the Council, be publicly available. On 18 October, the Association for Plant Breeding for the Benefit of Society (APBREBES) released on its internet site documents from the UPOV Consultative Committee. Such documents had been kept in the “restricted area” of the UPOV internet site but were accessed through freedom of information legislations which are active in several countries, they said.

The civil society group includes the Berne Declaration (Switzerland), the Center for International Environmental Law (United States), the Community Technology Development Trust (Zimbabwe), the Development Fund (Norway), the Local Initiatives for Biodiversity, Research and Development (Nepal), the Southeast Asia Regional Initiative for Community Empowerment (Philippines), and the Third World Network (Malaysia). They have asked that all UPOV meeting documents be made publicly available.

Last year, UPOV’s Council approved a document [pdf] on rules governing access to UPOV documents. This changed UPOV’s policy and removed a first layer of documents under password, which was welcomed by civil society. But documents of the Consultative Committee are still placed in the restricted area of the “meeting documents” section of the UPOV website (IPW, Biodiversity/Genetic Resources/Biotech, 29 October 2012).

According to Peter Button, UPOV vice secretary-general, the main issues discussed this week will include the examination and approval of the Draft Program and Budget of the Union for the 2014-2015 Biennium, the examination of the conformity with the 1991 Act of the UPOV Convention of the law protecting new varieties of plants of Bosnia and Herzegovina, and developments concerning the plant breeders’ bill of Ghana.

UPOV members are also expected to elect a new chair and vice-chair of the Administrative and Legal Committee and of the Technical Committee, he told Intellectual Property Watch.

Two new organisations have asked to have observer status at UPOV: The South Centre, an intergovernmental organisation of developing countries, and the Friends World Committee for Consultation, a nongovernmental organisation which is a parent body of the Quaker United Nations Office. Both requests will be considered by the Consultative Committee, according to Button.

“QUNO has applied for observer status with UPOV, as this will improve our ability to understand the concerns of UPOV members and to facilitate balanced and informed discussions between the different stakeholders,” Caroline Dommen, representative, global economic issues for QUNO, told Intellectual Property Watch.

“UPOV’s decision on QUNO’s request for observer status will be a reflection of whether UPOV members are prepared to enter into public discussions about the broader policy impacts of the UPOV system ‘for the benefit of society’, as well as their willingness to take into account the broader interests of all stakeholders such as farmers,” she said.

Civil Society’s Concerns

A source from APBREBES told Intellectual Property Watch that the group has some concerns this week. In particular, in the Draft Program and Budget for the 2014-2015 biennium, a sub-programme on services to the Union for enhancing the effectiveness of the UPOV system focuses mainly on breeders’ rights, without including other issues such as a breeders’ exemption, and flexibilities with regard to exceptions and farmers’ rights.

Another sub-programme on assistance in the introduction and implementation of the UPOV system includes awareness-raising of the role of plant variety protection and assistance for states and organisations in their accession to the 1991 Act of the UPOV Convention. The civil society group said it is important to assess the suitability of UPOV 1991 for such states, taking into account local conditions and the nature of farming systems..

There are currently three versions of the UPOV Convention: The 1961 Act of the Convention, the 1978 Act of the Convention, and the 1991 Act of the Convention. The 1991 Act of the Convention has been described by some as more stringent than the previous versions and in some cases hindering farmers’ rights. Any new UPOV member has to adopt the 1991 version of the Convention.

APBREBES is also asking that UPOV agree on its proposal “to include a limited number of permanent places for observers representing various stakeholder groups, such as farmers, breeders, and certain other observer non-governmental organizations or to facilitate the participation by expanding the observer status that exists in the CAJ [Administrative and Legal Committee] to the CAJ-AG [Administrative and Legal Committee Advisory Group].”

The civil society group also questioned the “World Seed Project [pdf],” a joint initiative by UPOV, the UN Food and Agriculture Organization, the Organisation for Economic Co-operation and Development, the International Seed Federation, and the International Seed Testing Association. The project, which aims at encouraging plant breeding and the production and distribution of high-quality seed for the benefit of farmers, suffers from a lack of transparency and a lack of participation, they said.

Also of concern is a letter sent by ISF to the UPOV secretariat calling for a global harmonisation of the Plant Breeders’ Right regulations, according to APBREBES. Further harmonisation might go beyond the requirements of UPOV 1978 and 1991, and “may result in a loss of flexibilities for developing countries,” they said.

According to Button, “the letter shares the results of a questionnaire looking into areas that could be improved with regard to the application, examination and granting aspects of plant breeders’ rights.”

“It is important that no more mandatory obligations are placed on developing countries and countries maintain full flexibility with regards to implementation of the applicable conventions,” APBREBES said.

The letter [pdf] is available on APBREBES website in document CC86/11.

Seminar on Essentially Derived Varieties

On 22 October, UPOV is holding a seminar on essentially derived varieties. The draft programme [pdf] includes a session on technical and legal aspects of essentially derived varieties and the possible impact on breeding and agriculture. The seminar also will look into existing experience in relation to essentially derived varieties and the possible role of future UPOV guidance on those varieties in cases before the courts, Button said.

According to the 1991 UPOV Convention, Article 14.5(b) essentially derived varieties are defined by three criteria: “(i) it is predominantly derived from the initial variety, or from a variety that is itself predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, (ii) it is clearly distinguishable from the initial variety, and (iii) except for the differences which result from the act of derivation, it conforms to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety.”

[…] The International Union for the Protection of New Varieties of Plants (UPOV) held a number of meetings last week, from 21-25 October, leading to the meeting of its Council, which is the UPOV governing body. Meetings included UPOV’s Administrative and Legal Committee, and its Consultative committee, both preparatory committees to the Council (IPW, Biodiversity/Genetic Resources/Biotech, 22 October 2013). […]

[…] The agenda and documents of the Consultative Committee, which is the preparatory committee of the Council, are under restricted access. Last fall, a civil society group released the Consultative Committee documents, which they obtained through freedom of information legislation (IPW, Biodiversity/Genetic Resources/Biotech, 22 October 2013). […]